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Preclusion Motion Denied Where No Bad Faith in Deletion Of Smartphone Original Audio, and Party Waited Too Long To Seek Original

Posted on June 7th, 2017

audio from smartphoneIn Kennedy v. Supreme Forest Products, Inc., Case No. 14-01851 (D. Conn., May 22, 2017), Plaintiff, a truck driver, sued Defendants, his employers, for violation the Surface Transportation Assistance Act (STAA), based upon allegations that Defendants terminated his employment because he refused to drive trucks that were loaded over the federal weight limit. During his employment, Plaintiff used his smartphone to take audio recordings of a work meeting held March 17, 2014, and another conversation with his supervisors on April 3, 2014. He copied the recordings to a computer, and more copies were generated on the computer. He eventually deleted the original recordings from his phone. Plaintiff also took two photographs on his smartphone showing the suspension gauge on his truck registering that the load on the truck was too heavy. Defendants filed a motion to preclude the audio recordings for lack of authentication, and to sanction Plaintiff for failure to produce the original audio recordings and the smartphone used to record them. Defendants’ motion also included a request to preclude the photographs based upon late disclosure.

The court found that although Plaintiff should have kept the recordings on his phone, the deletions by Plaintiff were not done in bad faith.  There was no evidence that the copies of the recordings had been altered or were otherwise different from the originals.   Further findings regarding Defendant’s actions during discovery were pointed out by the court.  These findings include that Defendants did not “attentively pursue access” to the phone or the original data on the phone during discovery. In the court’s ruling denying the preclusion motion and the request for sanction, the court stated that after having listened to the recordings, it found that Plaintiff would not “necessarily fail” to establish the recordings’ authenticity. The court did render orders for the jury to receive limiting instructions regarding use of the recordings as hearsay, and establishing the authenticity of the recordings. The court further ordered preclusion of the photographs as evidence, since Plaintiff had failed to provide sufficient reason for the late disclosure of the photos.

ILS – Plaintiff Electronic Discovery Experts

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